An ordinary DBS (Disclosure and Barring Service) check reveals convictions and cautions. An enhanced check, required for many jobs, may reveal information held by the police such as intelligence, arrests, prosecutions and acquittals.
Surely an acquittal shouldn’t be on the check?
This was challenged in Court by “AR”, he was a qualified teacher who had been working as a taxi driver when he was accused of rape.
His defence was that there had never been any sexual contact with the complainant, although she had been in his taxi. He was acquitted. When he applied for a job as a lecturer the enhanced check revealed the acquittal and the details of the allegation.
What did the Court say?
The Court said that in certain circumstances such information could be included on enhanced checks and in “AR’s” case it was correct to do so.
The court said “in principle, even acquittal by a criminal court following a full trial can be said to imply no more than the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”
Who makes the decision?
In the first instance, the police decide whether the information should be included on an enhanced check (although in practice many matters are ‘filtered’ and removed automatically from consideration).
They can disclose non-conviction information that may identify a potential risk to the vulnerable; the test is based on relevance, truth/substantiation and proportionality.
It is not automatic, therefore, that an acquittal would be disclosed, as the circumstances of the acquittal need to be considered and consideration given as to whether the offender may have committed the alleged offence.
It is vital that if there is any positive evidence that the offender did not commit the offence, for example because the complainant admitted lying, that this is brought to the attention of the police.
How can we help?
A decision to include information on an enhanced check can be objected to and representations made to the police and if unsuccessful, can also then be appealed to the Information Governance Unit. We can assist you in formulating these representations. The solicitor who represented “AR” is also considering an appeal against this decision so that the situation may change. We always stay up to date with any changes in legislation or case-law so that we are I the best position to advise you. Contact Andrew Holland on 01743 237731 or firstname.lastname@example.org or Emma Lineton on 01743 237626 or email@example.com to discuss any criminal law related matters.